ISIL’s scorched earth policy in Iraq: options for its victims to be recognised under international law

With what has been called a ‘landmark’ resolution, the UN Security Council has established a team to investigate international crimes committed by ISIL in Iraq.

The aftermath of Islamic State’s scorched earth policy, the site of an extinguished oil well fire near Qayyarah, Iraq. Credit: Hassan Partow/UNEP

Will the investigative team also seek accountability for the victims of its scorched earth policy and oil fires? On which criminal provisions could the team of experts rely to address conflict-related environmental harm? This post by Eliana Cusato argues that, whereas these issues raise fundamental legal and practical challenges, environmental degradation associated with armed conflict should be regarded as a serious concern by the international community and its victims must be properly recognised.

On the 21st September the United Nations Security Council (UNSC) adopted Resolution 2379 requesting the UN Secretary General to establish an investigative team to collect and preserve evidence of war crimes, crimes against humanity and genocide committed by the Islamic State in Iraq (ISIL). The resolution stipulates that evidence of these international crimes would be used in future criminal proceedings in Iraq and other domestic courts, whereas ‘any other uses is to be determined in agreement with the Government of Iraq on a case by case basis’. As such, the resolution does not exclude a hypothetical use of this evidence by international criminal tribunals.

Whilst applauding the UNSC’s initiative of documenting atrocities committed in Iraq by Islamic State, some commentators, for instance Human Rights Watch, have criticised the failure of the resolution to include crimes committed by anti-ISIL forces in Iraq, and maintained that ‘Iraq urgently needs investigations of serious crimes by all sides to the conflict’. Although few would disagree that ‘the lack of impartial justice could undermine longer-term prospects for stability and development’, there are other factors that may equally influence the chances of sustainable peace and development in Iraq.

According to a rich body of literature, there is a cyclical relationship between the environment, armed conflict, and peace. An increasing number of studies suggest that environmental degradation and resource depletion may create a fertile ground for violence and conflict, hence addressing damage to the environment and usurpation of natural resources associated with armed conflict is paramount in the work for peace. This perspective has also been recognised by UN Environment, which maintains that natural resources play a vital role in the peacebuilding process and in post-conflict transition.

However, it is also acknowledged that ensuring accountability for these types of wrongs raises fundamental challenges (not least, in terms of evidence collection and assessment). Yet this post argues that, in investigating international crimes committed in Iraq by ISIL, the UN investigative team should not overlook the serious environmental impact of warfare and the military tactics employed by the terrorist group. Victims of conflict-related environmental harm may be less visible than those of terrorist bombings or other forms of violence, but they equally deserve to be recognised and be granted a remedy.

ISIL’s scorched earth policy should be a concern for the international community

What are the alleged facts on which the investigative team should focus its attention? In October 2016 ISIL set fire to sulphur stockpiles at the Al-Mishraq production plant. The plant had also suffered a major fire in 2003 and, while the fire in 2016 was extinguished more rapidly, the plume of sulphur dioxide led to 1,500 people requiring treatment for suffocation symptoms in the Iraqi towns of Qayyarah, Makhmour and Ijhala. Atmospheric modelling and ground level observations revealed that the plume travelled beyond Iraq into Turkey and Jordan.

Prior to the Al-Mishraq incident, from July 2016 onwards, ISIL forces ignited oil wells, storage tanks and a refinery around the Iraqi town of Qayyarah, located to the south of Mosul. Efforts to extinguish the fires took several months, given the complexity of the security and humanitarian situation around Qayyarah, resulting in thousands of residents and internally displaced people from Mosul being exposed to the plumes. In addition to the fires, deliberate spills were caused as ISIL opened pipelines, flooding residential areas with heavy crude oil. Although the military strategy of targeting oil infrastructures is certainly not unprecedented – and ISIL have continued to use the strategy, setting fire to 11 wells on the Alas oil field last month as Iraqi forces fought to recapture Hawija, its detrimental environmental impact and health consequences are a matter of serious concern.

Oil fires release toxic substances into the air and surrounding area (notably, sulphur dioxide, heavy metals and particulate matter laden with carcinogenic PAHs) that may later permeate the soil and underground aquifers, causing severe and long-lasting harm to the natural environment and the human health. The diffusion of such dangerous pollutants increases the risk of respiratory diseases, cancer and mortality, threatens wildlife and biodiversity, and impairs the capacity of a war-torn country to recover and move forward. An initial assessment by UN Environment has confirmed these fears, finding elevated levels of lead and mercury in ground and drinking water, and identifying large areas of grazing land that have been damaged by the pollution, impacting livelihoods.

Dealing with a limited legal framework

International criminal law has its own limits in regulating and addressing conflict-related environmental issues, such as those described above. The only provision mentioning the word ‘environment’ is Article 8(2)(b)(iv) of the Rome Statute, which proscribes, in the context of an international armed conflict, ‘intentionally launching an attack in the knowledge that such an attack will cause (…) widespread, long-term and severe damage to the natural environment, which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. The threshold of environmental damage is so high, that it may leave the majority of conflict-related environmental harm outside the scope of the provision.

An additional problem concerns the application of the prohibition only in the context of international armed conflict. Is the conflict against ISIL in Iraq an international armed conflict? The Islamic State asserts state-like structures and functions in the territory under its control, but this characterisation is not accepted by the international community and ISIL, of course, is not a party to international treaties. Most likely, the ongoing armed conflict in Iraq could be seen as a non-international armed conflict. Hence, an alternative route would be to stretch the contours of other war crimes applicable in the context non-international armed conflict, such as unnecessary destruction or seizure of enemy property, or pillage, to account for ISIL’s actions and impose liability for conduct resulting, inter alia, in environmental degradation.

Another possibility would be to take an anthropocentric approach and rely on crimes against humanity and genocide to prosecute environmental degradation as a means to perpetrate humanitarian atrocities. This approach seems to be supported by the ICC Office of the Prosecutor (OTP). In September 2016, the ICC Prosecutor issued a Policy Paper detailing the OTP new priorities for case selection, namely a ‘particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’.

Applying anthropocentric crimes to address episodes of environmental degradation may be a necessary move to ensure accountability for conflict-related environmental harms. This approach, however, will not do justice to environmental concerns not directly associated with perceivable human harm. Further, the use of crimes which are not framed around environmental issues to fill the gaps lefts by international law raise several challenges. Notably, the critical element in bringing a charge for genocide concerns the proof of special intent (i.e. ‘to destroy, in whole or in part, a national, ethnic, racial or religious group’), which must accompany the commission of the underlying environmental offence.

The main constraint on applying crimes against humanity to sanction environmental damage lies in the contextual elements, namely the existence of a widespread or systematic attack directed against any civilian population, and the knowledge requirement. The term ‘widespread’ implies a large-scale action involving a substantial number of victims, whereas the term ‘systematic’ requires a high degree of orchestration and planning. It is evident that both genocide and crimes against humanity set quite a high bar and are not fit to address isolated episodes of environmental degradation.

Has the time come to take conflict-related environmental degradation seriously?

Although regarded until now as a minor concern by the system of international law, and rarely addressed in judicial or non-judicial settings, environmental harm associated with armed conflict deserves to be taken seriously and its victims must be recognised. The degradation of environmental resources resulting from pollution caused by military operations and armed conflicts affects the enjoyment of fundamental human rights, notably the right to health, food and access to clean water. This in turn increases the vulnerability of peoples, often in the poorest regions of the world, and creates vicious circles of further violence and insecurity. Whereas international criminal law is not a panacea, and may not provide the best responses to the problems discussed here (for instance, in terms of remedies), ISIL’s actions described above should not be ignored by the UN investigative team, even if their prosecution may pose difficult political, legal and practical questions.

Eliana Cusato is a Ph.D. candidate and research assistant in the Faculty of Law at the National University of Singapore. Her research focuses on the correlation between armed conflict and the environment, and explores the role of ex-post remedies in international law. Full profile available at http://law.nus.edu.sg/admissions/phd_stds_desc.asp?ID=36

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